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Hope or Hype? Neuroscience & Criminal Law

The discovery of functional magnetic resonance imaging (fMRI) in 1991, which permits non-invasive imaging of brain function, and the wide availability of scanners for research starting in about 2000 fueled claims that what we would learn about the brain and behavior would transform and perhaps revolutionize criminal law. Most commonly, many thought that traditional notions of criminal responsibility would be undermined for various reasons, such as demonstrating that people really cannot control themselves as well as we believe, or as indicating that more action was automatic, thoughtless and non-rational than we think. Most radically, the neuroexuberants argued that neuroscience shows that no one is really responsible because we are not agents; rather, we are victims of neuronal circumstances that mechanistically produce our epiphenomenal thoughts and our bodily movements. Similar claims were made when the genome was cracked. The age of cognitive, affective, and social neuroscience (behavioral neuroscience)—the neurosciences most relevant to law—is almost two decades old. What have we learned that is legally relevant and how has it transformed criminal law doctrine and practice?

Despite the astonishing advances in neuroscience, most of what we know is not legally relevant, has not transformed doctrine in the slightest and has had scant influence on practice except in death penalty proceedings. The reasons are conceptual, scientific, and practical. The first and most basic conceptual problem is that we have no idea how the brain enables the mind and action, although we know that it does. If your brain is dead, you have no mental states and do not act. The brain/mind/action connection is one of the hardest problems in science and neuroscience is not about to crack it anytime soon, if ever.

The law’s culpability and responsibility criteria are all acts and mental states. Law is a thoroughly folk psychological institution. In contrast, neuroscience, unlike psychology and psychiatry, is a completely mechanistic science. Neurons and even the connectome do not have aspirations, a sense of past, present and future, and intentions. These are mental states of human agents. Bridging the gap between folk psychology and mechanism is exceedingly difficult, especially as a result of some of the scientific and practical problems I will presently address. This problem cannot be avoided by claiming that the mind can be reduced to the brain. In addition to all the conceptual problems with the reductionist project, there has yet to be one successful demonstration of a reduction of mind and action to some allegedly more explanatory level of explanation. Failure to understand the relationship between neuroscience data and legal criteria has produced confused judicial decisions about whether proffered neuroscience evidence in criminal cases is genuinely relevant.